Trial for Border Patrol agent who shot and killed Mexican teenager moved to November

TUCSON— The murder trial for the Border Patrol agent who shot through the border fence and killed a Mexican teenager is now set for November, after being delayed three times since late 2015.

U.S. District Court Judge Raner C. Collins set the trial date for Nov. 7, the day before Election Day. The goal was to set a realistic date for both sides — allowing the Border Patrol agent's lawyer Sean Chapman time to prepare for the trial while also giving the government a set date to bring in witnesses from two countries.

Collins also declared that the trial would be treated as a complex case, which gives the defense more time to prepare for trial.

Border Patrol agent Lonnie Ray Swartz was charged last September with second-degree murder for killing 16-year-old Jose Antonio Elena Rodriguez by firing through the border fence into Mexico on Oct. 10, 2012. The latest delay means his trial will not begin until after the fourth anniversary of the teenager's death.

Elena Rodriguez's mother, Araceli Rodriguez, and her extended family attended Tuesday's hearing. The family let out an audible gasp when the November trial date was announced.

After the hearing, Rodriguez said in Spanish that, as a mother, she would like the trial to take place now. Still, she said she is happy there is a real date in November when the agent will be tried.

"I hope that the jury that is deciding the case has morals, is a jury made up of members who have children, is a jury that knows good from bad, that can distinguish the truth from lies," she said. "I hope that the jury leans towards justice. To choose justice."

Chapman said the defense needed extra time given that in the past three months, it has received more than 7,500 pages of disclosure from the government. In addition, Chapman has to interview the government's witnesses in both Mexico and the United States.

In February, the U.S. government disclosed it intended to present the testimony of eight expert witnesses at trial, including a firearms expert, a ballistics expert, three forensic medical examiners, two forensic chemical experts and a use-of-force expert, a motion from Chapman said.

Swartz emptied his .40-caliber pistol through the slats in the border fence into Mexico, hitting the teenager 10 times in the back and head, leaving him facedown in a pool of his own blood, according to court documents.

The Border Patrol said the boy was throwing rocks in conjunction with marijuana smugglers who were being chased after jumping the border fence into the United States. Witnesses, meanwhile, said he was just walking down the street.

Swartz is only the third agent to be indicted in a use-of-force death since 2005, anArizona Republic database of use-of-force deaths shows. He is the first to be charged by the Justice Department. The other cases were brought by local prosecutors and the cases were either dismissed or ended in hung juries.

Chapman told the court that because of other trials and the large amount of time needed to prepare for Swartz's trial the earliest the trial could occur was in mid-November. He suggested a date in either January or February 2017 if the November date didn't work. He declined to comment after the hearing.

Assistant U.S. Attorney Wallace Kleindienst said he was amenable to the November date but didn't want the trial — which is expected to last at least a month — to drag into Christmastime. The two sides and the judge ultimately decided on Nov. 7, a day before Election Day.

James Lyall, an attorney for the American Civil Liberties Union, which is representing Elena Rodriguez's family in a separate civil case, said he thought the timing was interesting but he thought the trial date didn't have anything to do with the election, but rather the schedule of the attorneys involved in the case.